Trump DOJ Tests Judge’s Patience as Census Trial Wraps

MANHATTAN (CN) – Remarking that this is a day the Trump administration wanted to avoid, a federal judge ushered in closing arguments Tuesday morning in a case where challengers say the census is being steered to stifle Democratic political representation for the next decade.

Liz OuYang, a coordinator for the New York Immigration Coalition, slams the government’s efforts to “run the clock down until the 2020 survey must go to print” at a Nov. 27, 2018, press conference outside of Manhattan Federal Court following closing arguments in a lawsuit opposing the addition of a citizenship question to the census. (ADAM KLASFELD, Courthouse News Service)

“Some of you tried hard not to be there, but welcome back nonetheless,” U.S. District Judge Jesse Furman told attorneys for the government.

The Department of Justice tried no fewer than 14 times to stop the census trial in its tracks, most recently with a Supreme Court appeal on the eve of closing arguments.

On the 12th attempt, Furman excoriated the government: “Enough is enough,” his ruling ended, but the Justice Department persisted twice more in the meantime. A three-judge panel of the Second Circuit unanimously upheld Furman’s ruling in the first appeal, and the last one remains pending before the Supreme Court.

In his closing remarks today, delivered on behalf of a coalition of 18 state attorneys general, Assistant New York Attorney General Matthew Colangelo emphasized the unique circumstances of their challenge.

The Census Bureau typically engages in extensive testing before making a change to surveys that affect how the government apportions political representation and hundreds of billions of dollars in funding.

But Colangelo noted that this is no “ordinary case.”

Accusing Commerce Secretary Wilbur Ross of whitewashing the record and contradicting his own subject-matter experts, Colangelo said: “They in fact misled the public and Congress and the court.”

In sworn testimony earlier this year before the House Ways and Means Committee, Ross said he added the citizenship question because the Justice Department requested the data to enforce the Voting Rights Act. According to Colangelo, however, evidence has came to light during litigation that exposes this as a pretext.

“The outcome of this trial will affect every community in the country,” he said.

The U.S. Constitution mandates that all residents – whether citizens or not – are counted every 10 years, and trial evidence showed that this data effects public services large and small, including congressional representation and government funding.

On a local level, New York City’s top demographer testified that the data helps municipal authorities provide educational services, chart the outbreak of diseases and even distribute Yellow Pages.

The Justice Department’s attorney Brett Shumate insisted that Commerce Department’s chief has broad discretion on the weighty decisions of how to collect data.

“It was entirely reasonable for Secretary Ross to make a policy judgment that the benefits of adding a citizenship question outweighs the costs,” Shumate said.

The lawsuit claims that the true goal of adding the question is to chill participation in Latino communities, which fear that citizenship data will be used to further the Trump administration’s anti-immigrant agenda.

Shumate argued that such communities always have responded to the census in lower numbers.

“There’s historically been an undercount of Hispanics, even before the addition of a citizenship question to the census,” he said.

Arguing for the American Civil Liberties Union, Arnold & Porter attorney John Freedman invoked other troubling background surrounding the survey.

“We have a history in this country of misusing census data,” Freedman said, citing its use to enact Japanese internment in the 1940s.

Though the United States added confidentiality protections to the census after World War II to prevent such an abuse from happening again, trial evidence showed that fear that the data would be shared with law enforcement ran strong in Latino communities.

The Census Bureau’s chief scientist John Abowd, who recommended against adding a citizenship question, testified that the agency found that adding the citizenship question to its American Community Survey led to inaccurate results more than 30 percent of the time.

After grilling both of the parties for more than three hours, Furman reserved decision on the case. He said he anticipated ruling within the next few weeks. Representatives of the civil rights groups suing the government held a press conference outside of court following the hearing, where they said the day of reckoning had come.

The New York Immigration Coalition’s coordinator Liz OuYang slammed the government’s efforts “to run the clock down until the 2020 survey must go to print.”

“The Commerce Department materially altered the response from the Census Bureau’s own chief scientist who wrote that adding a citizenship question to the census requires extensive testing, review and evaluation,” OuYang noted.

Her colleague Betsy Plum, the group’s vice president of policy, called the census change a part of the Trump administration’s “campaign of hate and intimidation” that she said continued with tear-gassing this week of migrant families on the Mexican side of the U.S. border.

On top of fighting in court, immigration advocates are also facing off against the survey’s printing deadline of June 2019.

The Justice Department made clear that any appeals of Furman’s ruling could stretch beyond that date.

“To be sure, a full round of appellate review of the district court’s final decision on the merits might not be possible to complete before next summer,” U.S. Solicitor General Noel Francisco wrote in a letter to the Supreme Court on Monday evening.

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